Case # G0051731
Date of Accident: 03/31/2008
District Office: Albany
Employer: Ausable Valley Central School
Carrier: Ausable Valley CSD
Carrier ID No.: W802359
Carrier Case No.: AUS-005-07
Date of Filing of Decision: 03/29/2012
Claimant's Attorney: Alex C. Dell, Esq.
Panel: Robert E. Beloten

The Full Board, at its meeting held on February 28, 2012, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on May 24, 2011.

ISSUE

The issue presented for Full Board Review is whether the SIE's Form C-8.1s objecting to two psychiatric treatment sessions were appropriately found in favor of the health care provider subject to 40% tentative apportionment.

By decision filed on November 10, 2010, the Workers' Compensation Law Judge (WCLJ) resolved the Form C-8.1s in favor of the health care providers, subject to 40% tentative apportionment.

In a Memorandum of Decision filed on May 24, 2011, the Board Panel majority affirmed the WCLJ's decision.

The dissenting Board Panel member would have found the Form C-8.1s in favor of the self-insured employer (SIE).

In its application for Full Board Review, filed with the Board on June 22, 2011, the SIE argues that it is only obligated to provide psychiatric care which is related to the claimant's compensable neck and back injuries and that since the disputed psychiatric treatment sessions were not related to the claimant's compensable injures, and were related solely to non-work related marital and personal issues, the Form C-8.1 issues should be found not compensable.

In a rebuttal filed with the Board on July 21, 2011, the claimant asserts that the majority's opinion is supported by the substantial evidence in the record and request that it be upheld.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

On March 31, 2008, the claimant was injured while working for the SIE, when she slipped on "goo" and fell down the stairs.

The case is established for work-related injuries to the claimant's neck, left arm, left hand, back, and consequential depressive disorder. The claimant's average weekly wage was set as $1,365.58.

The claimant was examined by the SIE's psychiatric consultant, Dr. Conciatori, on April 19, 2010, and a corresponding report was issued. Dr. Conciatori noted that the claimant has a psychiatric history that dates back at least ten years before her work accident, "and possibly way before that as well." Dr. Conciatori opined that the claimant's March 31, 2008, work accident caused an exacerbation of pre-existing disorders and symptoms in the claimant. He further found that claimant's current work-related accident is responsible for 40% of the claimant's current symptomology and 60% to prior events in her life and her prior psychiatric history and stressors for those events. Dr. Conciatori further found that 40% of the treatment with Dr. Gitlin is related to "present symptoms stemming from the [work-related] accident and the other 60% related to the pre-existing symptoms that she had."

By Notice of Decision (NOD) filed on September 27, 2010, the WCLJ, among other things, directed the claimant to produce an opinion on the issue of apportionment with regard to her consequential depressive disorder.

The SIE filed two Form C-8.1s [Notice of Treatment Issue(s)/Disputed Bill Issue(s)], on October 14, 2010, and October 19, 2010, objecting to psychiatric treatment rendered by the claimant's treating psychiatrist, Dr. Gitlin, on September 27, 2010, September 29, 2010, and October 5, 2010. On the form the SIE indicated that the treatment was not causally related to the claimant's compensable injuries. Attached to the SIE's forms were Health Insurance Claim Forms (HICF) submitted by Dr. Gitlin for the disputed treatments, and Dr. Gitlin's handwritten notes from the sessions. In item "10" on both HICFs, Dr. Gitlin indicated that the claimant's condition was not related to her employment.

Within the September 29, 2010, report, Dr. Gitlin noted that the claimant was in for a medicine check and that she was doing well on the current regimen. It was noted that the claimant had decided to leave her husband back in June and that she had since found a place to stay. The husband had been violent in the past when she had stood up to him. She planned on moving out and then telling him while he was at work (either when he was working two days in a row or when he was working a double shift). She noted that her children had not revealed her plan to her husband, which was a statement of their fear of him. Within the October 5, 2010, report, Dr. Gitlin noted that the claimant was grieving the end of her relationship with her husband. She had moved out and had filed for divorce. She had resolved in her mind to follow through with the divorce. Dr. Gitlin noted that the claimant would follow with her current medications and that she was clear-headed.

During a hearing held on November 5, 2010, the claimant's attorney indicated that the claimant had been on paid leave of absence from work since May 21, 2010, "due to mental diagnosis issues." The claimant's attorney also raised the disputed medical bills, contending that the treatment was causally related and therefore covered. The SIE's attorney countered that the claimant's own doctor indicated on the HICF that the treatment was not related to the claimant's employment. The WCLJ resolved the Form C-8.1 issues in favor of the medical provider subject to the tentative 40% apportionment. The WCLJ also made the following awards: from January 30, 2009, to April 6, 2009, at the $500.00 weekly rate credit employer, no medical evidence for the period from April 6, 2009, to June 1, 2009, from June 1, 2009, to June 26, 2009, at the $500.00 weekly rate credit employer, no compensable lost time for the period from June 26, 2009, to May 21, 2010, and the period from May 21, 2010, to November 5, 2010, was held in abeyance. The claimant was directed to produce evidence of apportionment and up to date medical evidence of a causally related disability. The WCLJ's findings were memorialized in a NOD filed on November 10, 2010. The SIE filed a timely application for administrative review.

On November 24, 2010, Dr. Gitlin submitted a Form C-4.0 (Doctor's Initial Report), for treatment rendered on October 15, 2009, November 4, 2009, November 19, 2009, December 7, 2009, January 6, 2010, February 10, 2020, February 23, 2010, March 17, 2010, May 12, 2010, May 27, 2010, June 30, 2010, July 13, 2010, July 26, 2010, October 27, 2010, November 2, 2010, and November 10, 2010. Dr. Gitlin stated that pain and physical sequelae resulting from claimant's work-related injury were "severe enough to precipitate a secondary depression."

Dr. Gitlin further indicated that the claimant could return to work without limitations as of June 11, 2010.

Dr. Gitlin submitted a medical narrative report on December 1, 2010, in response to a letter from the claimant's attorney dated November 18, 2010. A copy of the claimant's attorney's November 18, 2010, letter is not located within the Board's file. In Dr. Gitlin's December 1, 2010, she recites the question posed to her as

"1. Was [claimant] suffering from a disabling, pre-existing psychiatric condition at the time of the accident of [March 31, 2008,] that resulted in the above referenced [Workers'] Compensation Claim?

2. Do I believe that medically the liability for [the claimant's] claim should be apportioned to that pre-existing condition?"

Dr. Gitlin answered both questions in the negative, noting that the claimant has no history of disabling psychiatric illness prior to her March 31, 2008, work accident.

LEGAL ANALYSIS

Under WCL § 13(a), an employer is obliged to pay for a claimant's causally related medical treatment and care.

In addition to being established for the physical injuries claimant sustained as the result of her March 31, 2008, work-related accident, it is also established for consequential depressive disorder. Based on his April 19, 2010, examination of the claimant, the carrier's psychiatric consultant, Dr. Conciatori, expressly found that 40% of the treatment with Dr. Gitlin is related to "present symptoms stemming from the [work-related] accident and the other 60% related to the pre-existing symptoms that she had."

The Full Board finds that the preponderance of the evidence in the record supports the WCLJ's decision finding Form C-8.1s in favor of the health care providers, subject to 40% tentative apportionment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on November 10, 2010, is AFFIRMED. No further action is planned at this time.